Teleworking: which rules need to be observed? 10 Q&A

The health protocols imposed as a result of the Covid-19 epidemic require us to rethink the organization within companies.

Teleworking, which some time ago was an option, is now indispensable.

The French Unions reaffirmed that when negotiation a new collective agreement last November 26th.

What is its legal framework?

Who is eligible?

Is it necessary to provide employees with equipment? Etc.

On 1st September 2020, the French Ministry of Labour specified that in light of the current situation with the Covid-19 circulation which does not stop, the implementation of teleworking can be considered as a workstation arrangement, which is made necessary in order to ensure the business continuity of companies. Even though his temporary framework is highly recommended, it does not lead to any formal requirements.

However, a number of employers and employees wish teleworking will develop or even be in wide use within companies. Several rules must be observed with respect to teleworking.

Please find hereafter questions and answers in order to help employers grasp this concept and its implementation within their company, in compliance with legal provisions.

1- How should teleworking be implemented ?

  • Article L1222-11 of the French Labour Code states that the risk of an epidemic can justify the use of teleworking without the employees’ consent and without particular formal requirements. In the framework of the current situation, it will constitute a temporary teleworking arrangement. However, other than in that specific instance, things are different.
  • Generally, teleworking can be implemented:
  • by a collective agreement,
  • or failing that by a charter drawn up by the employer after consulting the social and economic committee

Therefore, the employer must initiate negotiations on teleworking at company-level, establishment-level or group-level.

  • It is only in the absence of agreement or charter that it is highly recommended to formalize, by all means, the use of teleworking agreed by the employer and the employee: email, letter or amendment to the employment agreement (Article L1222-9 of the French Labour Code)

In order to limit the risks of litigation, we recommend that the employer formalize such agreement by an amendment to the employment agreement which will set the terms of implementation of teleworking.

2- Which content for the agreement, the charter or the amendment to the employment agreement ?

  • The terms for switching to teleworking and for resuming performing the employment agreement without teleworking,
  • The conditions of acceptance by the employee of the teleworking implementation terms,
  • The conditions of control of working time or of regulation of workload,
  • The setting of the hours during which the employer may usually contact the teleworker;
  • The conditions of access for disabled employees to a teleworking organisation.

3- Who are the eligible employees ?

  • No employee is officially excluded from eligibility to teleworking except in case of obvious reasons related in particular to their profile, such as lack of years of service or lack of independence or in case of tasks that must take place outside (requirement to go to sites, to visit clients etc.).
  • In practice, it is the collective agreement or the charter which sets the eligibility criteria as the case may be, in accordance with the quite precise definition of teleworking (Article L1222-9 of the French Labour Code); a concept which should not be confused with home-based work which is governed by Articles L7411-1 & seq of the French Labour Code.

4- Can an employee refuse teleworking ?

The employer cannot force an employee to telework and the employee’s refusal cannot constitute a ground for termination of his/her employment agreement.

The only exception to the voluntary principle arises as a result of exceptional circumstances, in particular in case of a threat of an epidemic (for instance the Covid-19 health crisis with which we have been faced) or in case of force majeure.

5- Is teleworking a right for the employee?

The French Ministry of Labour recommends the use of teleworking given the actual situation of circulation of Covid-19 and its use should be favoured for a number of employees.

  • Except where the authorities expressly recommend the use of teleworking as a result of the health crisis background or a vulnerable situation which is certified by a physician, no provision requires that you accept a request for teleworking.

However, if the request is made by an employee whose employment position is eligible to teleworking in accordance with the collective agreement or the charter in force within the company: refusal must be reasoned.

In any event, in light of the principle of equal treatment, the criteria for selection retained must be based on objective criteria.

6- Can the occupational physician impose teleworking as a result of the employee’s health condition?

The occupational physician can suggest, in writing and after discussing with the employee and the employer, individual measures of arrangement, adaptation or transformation of the workstation of the relevant employee, in light taking into account in particular the employee’s age or physical and mental health condition.

The employer must take the abovementioned elements into account in order to comply with its obligations, in particular in terms of safety, failing which it shall explain in writing to the employee and the occupational physician the objective grounds for its refusal.

7- Can an employee telework from anywhere he/she wants?

Teleworking can take place:

  • From the employee’s home,
  • From the employee’s second home,
  • From a third place such as coworking space,
  • From abroad provided that the employee informs you and can guarantee normal conditions of performance for the sake of his duty of loyalty,

in compliance with the provisions provided for by

  • The collective agreement,
  • The charter.

As part of its general safety obligation, the employer must first ensure that the workplace is compliant, and in particular the electrical installations. In the event the teleworker works from home, the employer must obtain his/her prior consent or as the case may be request that he/she provides an affidavit certifying that the electrical and technical installations are compliant, after informing him/her or risk exposure in the event the equipment is not compliant.

8- What are the teleworkers’ rights?

Teleworkers have the same rights as employees who perform their work in the premises of the company.

The collective agreement or the charter implementing teleworking must provide for the conditions of (i) control of working time or (ii) of regulation of workload.

The employer must organise an annual meeting regarding in particular the employee’s conditions of activity and workload.

The hours during which the employee can be contacted mut be provided for by the agreement, the charter, the employment agreement or the amendment to the employment agreement, as the case may be.

9- What are the employers’ obligations?

The equipment required may belong to the employer or the employee.

The only legal obligation of the employer is the following: it must inform the employee of

  • Any restrictions on:
    • The use of IT equipment or tools
    • The use of electronic message services
  • Any sanctions in the event of failure to comply with the restrictions

In all cases, the employer must provide appropriate technical support service.

10- What are the teleworkers’ obligations?

With respect to the equipment:

Teleworkers have the obligation to inform the company forthwith of any breakdown or poor operation of the equipment

With respect to the insurance against teleworking-related risks:

In principle, home insurance covers teleworking. The employer must request a teleworking coverage certificate. The employer should bear any extra-cost generated by teleworking.

 

The firm ASSER AVOCATS is available to assist you with the sustainable implementation of teleworking within your company.

 

 

 

 

 

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How companies and employees can respond to the Coronavirus

Our Firm has summarised below your scope of action, in the context of the sanitary crisis we are currently experiencing, in the following FAQ, on the basis of the measures implemented to date.

Are employers under the obligation to implement teleworking within their companies?

Employers have a strict obligation to ensure safety results, and must therefore provide for the physical and mental safety of their employees. Thus, they must take all steps to protect the health and safety of their employees.

In this respect, the Government says that taking into account the sanitary crisis and containment situation, teleworking is to be preferred.

Is it still possible to apply for partial activity?

Companies may still apply for partial activity on the dedicated portal of the administration https://activitepartielle.emploi.gouv.fr/aparts/.

To date, according to the Ministry of Employment, over 5 million employees are now subject to short time working in 470 000 companies.

Is it possible to be both subject to (i) teleworking and (ii) partial activity mechanism (named chômage partiel) “in full”?

From the moment an employer applies for authorization to cease its activity in the context of the “partial activity mechanism”, its employees can no longer work. If the employees continue to work, the employer commits a fraud and is exposed to penalties in this respect.

According to the statements of Muriel Pénicaud and her Labour Ministry “Subjecting employees to short time working (partial activity) is not compatible with teleworking. Where an employer asks an employee to telework whereas the latter is subject to partial activity, this amounts to a fraud and is considered as illegal work”.

If the State notes that an employer has committed a fraud, the State may ask the employer to reimburse all of the sums it has received under the partial activity mechanism.

Various other penalties apply, which may be cumulated:

  • impossibility to receive public aids in terms of employment and vocational training, for a maximum period of 5 years.
  • 2 years’ imprisonment and a financial penalty of €30 000, pursuant to Article 441-6 of the French Criminal Code.
  • However, it is possible to reduce the activity of employees who are teleworking and to apply for “partial activity mechanism” for the time remaining and not worked.

Can an employee on sick leave benefit from the partial activity mechanism?

In the event the employee is on sick leave at the time the company implements partial activity within the company, the prevailing criterion is the classical criterion, i.e. the first cause of suspension of the contract of employment.

Thus, if an employee is on sick leave, he/she cannot be entitled to receive both the sick pay and the allowance which may be paid to him/her under the partial activity mechanism.

The employee only receives sick pay.

Can an employee carry out another activity during the non work-hours under the partial activity mechanism?

An employee may carry out another activity during the non-work hours without authorization from his/her employer, from the moment the contract of employment does not include an exclusivity clause.

If the contract of employment includes an exclusivity clause, the employee must obtain his/her employer’s express approval.

Employees remain subject to a duty of loyalty. Under those circumstances, an employee cannot work for a competitor or as a freelance in the event the activity competes with that of his/her employer.

How can social dialogue be maintained in times of containment (with staff representatives)?

Ordinary rules of law authorise the holding of meetings via videoconference from the moment the technical device ensures that the members of the committee are identified and actually attend the meetings.

As a matter of principle, the number of meetings held via videoconference is limited to three per calendar year, unless otherwise agreed by the employers and the elected members of the Social and Economic Committee (Comité social et économique – CSE)

As for the required exchanges between the Secretary and the Chairman of the CSE regarding the agenda of the meetings, they may be made by email.

Where a CSE has to issue an opinion via video conference, ballot secrecy must be ensured where the members of the CSE request a vote by secret ballot.

Is it possible to initiate or continue an information-consultation process related to a proposed restructuring involving the setting up of a PSE (Employment safeguard plan– redundancy plan)?

Various situations may arise:

  • Regarding the files for which the process is achieved and the request for approval has already been sent (before 12 March): the DIRECCTE (French labour administration) should make a decision explicitly
  • Regarding the Employment Safeguard Plans for which an information-consultation process is ongoing:
  • The process is maintained via the technological resources, from the moment the employee representative institutions and the representative trade unions have the possibility to play their role
  • If the process is maintained despite the unfavourable opinion of the employee representative institutions and of the representative trade unions: there is a risk as to the regularity of the process, where the Social and Economic Committee did not have the possibility to play its role.
  • Regarding companies on the verge of initiating an employment safeguard plan: the Ministry recommends that companies postpone the announcement, taking into account the risks as to the regularity of the information/consultation and the difficulties to have a social dialogue that complies with the roles of the bodies.
  • Regarding the files approved by the bodies: It is recommended that the Employment Safeguard Plan be implemented by adapting the corresponding timetable, and in particular the notices of dismissals, in light of the sanitary crisis.

Is it possible to finalise the ongoing dismissal procedures?

From a legal perspective, nothing prevents employers from dismissing employees, and the Government seems to focus on dismissals for economic reasons.

However, the procedure should be adapted in light of the containment situation.

Is it possible to conclude mutually agreed termination agreements?

Nothing prevents employers and employees from concluding a mutually agreed termination agreement. Yet, some practical difficulties may arise during the containment regarding the holding of the meetings and the time periods for obtaining the administration’s approval. The ordinance n°2020-306 dated 25 March 2020 seems to suspend the time periods up to 24 June 2020. Yet, some precisions are expected to be made in this respect in the next few days.

Our Firm remains at your disposal for any further information and for any assistance you may need.

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BREXIT: FRENCH OR BRITISH CITIZENS, HOW TO GET READY ?

The Brexit officially entered into force on 31 January at midnight French time.  There is now a transition period until 31 December 2020, which may be extended by one to two years. During the transition period, the European Union rules remain applicable to Franco-British relationships. European Union law will continue to apply to companies and individuals in France and in the United Kingdom.

After expiry of the transition period, the provisions of the withdrawal agreement will apply.

The Asser law firm offers you a picture of the main features of the agreement from the perspective of European and British workers.

 

Who is concerned by the provisions of the agreement?

Three main categories of persons are concerned by the provisions of the agreement:

1) European Union citizens who:

  • Have exercised their right to reside in the United Kingdom in accordance with European Union law before expiry of the transition period and who continue to reside in the United Kingdom after expiry of the transition period;
  • Have exercised their right as cross-border workers in the United Kingdom in accordance with European Union law before expiry of the transition period and continue to do so after expiry of the transition period.

2) British citizens who have exercised the same rights of residence and under the same conditions

3) Family members of European and British citizens

 

What are the rights in terms of right of free movement?

In this respect, the text of the agreement does not provide for any major change: European Union citizens and United Kingdom nationals have the right to enter and leave the territory under the current conditions of European Union law, i.e. with a valid passport or national identity card.

The holders of a valid residence permit are not required to hold an exit visa, an entry visa or equivalent formalities.

 

What kind of  rights in terms of “right of residence” and “right to work”?

You are French 

  • You reside in the United Kingdom

–          Right of residence of French citizens and their family ?

–          Right to the « settled status » Eligibility to the « pre settled status » ?*

  • You work in the United Kingdom

–          The « pre settled status » is valid as a work permit ?*

 

You are British

  • You reside in France

–          Right to permanent resident status ?

–          Eligibility to obtain a residence permit ?*

  • You work in France

–          The permanent residence permit is valid as a work permit?

–          you must apply for a residence permit that is specific to workers ?*

 

*The Asser law firm assists you in your dealings with the Brexits’ consequences in employment law (customized advice)

 

The Employment Law Team

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